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Full text of "Waghray v. Dominion Management Limited, Board of Inquiry, February 1980 BOI 114"

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IN THE MATTER OF the Ontario Human Rights 
Code, R.S.O, 19 70, c. 318, as amended 



s&t AND IN THE MATTER OF the Complaint of 

_~. Girija Waghray, and the Complaint of 

Mini ^^/O Dilip Waghray, both of the City of Hamilton, 

STr y of Labour Ontario, alleging discrimination in housing 
*t« D because of race and colour, by Dominion 

198Q / Management Limited, and their servants and 
/ agents of the City of Burlington, Ontario 

O RDER 

This matter having been heard by this Board of Inquiry, 
on February 7, 19 80, pursuant to the Appointment by the Minister 
of Labour, The Honourable Robert Elgie, M.D., dated the 19th 
day of October, 1979, in the presence of Counsel for the Ontario 
Human Rights Commission, Counsel for Dominion Management. 
Limited, and their servants and agents, and the Complainants 
appearing in person, upon hearing read the Complaint, and upon 
hearing the Consent of all parties: 

1. IT IS ORDERED that the Respondents pay, in the name of the 
Complainants, Girija Waghray, and Dilip Waghray, the sum of 
TWO HUNDRED DOLLARS ($200.00) to Dr. Rygiel's Childrens 1 Home. 

2. AND IT IS ORDERED that the Respondents post the standard 
Ontario Human Rights Card in a public place, in each of the 
buildings they operate, as part of their business. 



DATED this MCI day of f&yuJUuvA , 19 80 . 



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Robert W. Kerr, Chairman, Board of 
Inquiry 



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ONTAKIJ 

Ministry of labour 



AUG 8 1960 



HUMAN RIGHTS 

COMMISSION 



IN THE MATTER OF THE ONTARIO HUMAN RIGHTS 
CODE R.S.O. 1970, CHAPTER 318, AS AMENDED 



AND IN THE MATTER OF the complaint made by 
Ms. Hetty J. Hendry of Brockville, Ontario, 
alleging discrimination in employment by 
the Liquor Control Board of Ontario, 
Brockville Shopping Centre, Brockville, 
Ontario. 



BOARD OF INQUIRY 



D.A. Soberman 



Appearances 



Mr. A.C. Millward 

- and - 
Mr. D.A.J. D'Oliveira 



Counsel for the Ontario Human 
Rights Commission and the Com- 
plainant, Ms. Betty J. Hendry 



Mr. J. A. Sproule, Q.C. 



Counsel for the Respondent, 
the Liquor Control Board of 
Ontario. 



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This inquiry is concerned with the complaint of 
Ms. Betty J. Hendry against the Liquor Control Board of 
Ontario, alleging that it discriminated against her in 
violation of section 4, subsection 1(b) and (g) of the 
Ontario Human Rights Code, R.S.O. 1970, c. 318 as amended, 
by refusing to employ or to continue to employ Ms. Hendry 
because of her sex. „ 

THE FACTS WITH RESPECT TO PART-TIME EMPLOYMENT 

Ms. Hendry is 4 2 years old and a long time resident 
of the Brockville area. Since 1973 she has lived in the city 
of Brockville itself. In August 1975 she was looking for work 
and decided to make inquiries in the local LCBO store in the 
Brockville Shopping Centre, a store known as No. 351. She 
obtained an application form there for part-time employment 
and had an interview with the store manager, Mr. Jim Jones. 
Mr. Jones said that if she was interested in work she should 
see Mrs. Gwen Rosenberg who was a member of the executive of 
the Progressive Conservative Party in the riding of Leeds. 
Ms. Hendry said she was rather irritated by this suggestion 
but acted on the advice because she wanted work. Apparently 
the discussion with Mrs. Rosenberg was short and it was not 
clear from the evidence of Ms. Hendry exactly what was 
discussed other than that Ms. Hendry wondered what it was all 
about. For three months nothing happened. In early December 
Mrs. Rosenberg informed Ms. Hendry by telephone that part-time 



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work would be available immediately at store No. 351. Ms. 
Hendry commenced work as a part-time employee on December 11, 
1975. 

We may note that in a typical LCBO store, the size 
of the Brockville store, there are about a half dozen full- 
time employees. Apart from the manager and possibly the 
assistant manager all employees share in the general duties 
in the store, including unloading transports, stocking shelves, 
taking inventory, working as cashier, cleaning the premises 
and sometimes doing work on the store's ledger entries. The 
regular staff is augmented from time to time by part-time, 
temporary help as required, especially during the busy seasons 
of December and summertime. At store No. 351, the roster of 
part-time help varied from a high of a dozen or so during the 
peak seasons to a low of two to four who remained available 
more or less regularly at other times of the year to fill in 
as needed. Part-time staff share the same tasks as the 
regular staff, although initially they may spend more of their 
time at more physical labour duties. During peak periods 
they may work almost full time. Part-time workers would learn 
when they were needed either by asking the manager or assistant 
manager or checking a roster that was posted at the rear of 
the store in an area not accessible to the general public. 

It was under these conditions that Ms. Hendry began 
working in store No. 351. Apparently her work was sufficiently 
satisfactory that she was one of the part-time help kept on 
in the new year after the busy holiday season ended. She 



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continued sharing the part-time work with two or three other 
employees through late August of 1976. Mr. Jones was pleased 
with her work and the work of another part-time employee, Mr. 
Bill Warner. According to Ms. Hendry, Mr. Jones said he 
would try to give each of them as much work as possible. In 
fact, the two were given most of the part-time work, shared 
more or less equally between them. In each successive four- 
week period Ms. Hendry worked between 40 and 112 hours, 
averaging about 74 hours or 18 to 19 hours per week, just 
slightly less than Mr. Warner. 

In the last few days of August, Ms. Hendry was told 
that there was no work for her. For a few weeks she continued 
to come back to the store to inquire about work but each time 
was told that there was none. In fact, a new part-time worker 
had been hired in July and was given work in September when 
none was given to Ms. Hendry. Sometime later, in October or 
early November, she complained to Mr. E. W. McLelland, 
District Supervisor for the region including Brockville. She 
went to Kingston to see Mr. McLelland, who said he would look 
into the matter. When nothing happened in the following few 
days, Ms. Hendry decided to telephone Mr. F. M. Burtt in 
Ottawa. Mr. Burtt was Manager of Store Operations Area No. 
2, Mr. McLelland' s superior in the LCBO heirarchy. Mr. Burtt 
agreed to look into the matter and telephoned Mr. McLelland 
in Kingston the following day. As a result of discussions 
among the officers of the LCBO Mr. Jones received a 
recommendation from Mr. McLelland to provide part-time work for 



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Ms. Hendry and she was in fact given work commencing 
December 1, 1976. In the following four weeks she received 
112 hours of work during the Christmas rush period. However, 
in the succeeding four-week periods from January through mid- 
May 1977, unlike the same period in 1976, Ms. Hendry received 
-^very little work; she averaged only 5 hours per week, while 

Mr. Warner (who had worked regularly from August 1976 until Ms. 
Hendry was taken on again in December) averaged over 28 hours 
per week. On May 14, 1977 Ms. Hendry was finally told by 
Mr. Jones that there was no more work for her and she was 
effectively terminated. She has not worked for the LCBO since 
that time. 

The facts outlined above are not in dispute. However, 
Ms. Hendry claims that she was discriminated against as a 
woman by the management and staff of the LCBO and that sexual 
discrimination was a significant factor in the termination of 
employment at the end of August 1976. She further claims that 
the conditions which led to the termination in August 1976 
persisted when, through her appeals to higher levels of LCBO 
management, she was taken on again December 1, 1976 and these 
conditions led to her second termination in May 1977. 

In response, the LCBO asserts that Ms. Hendry, 
although an energetic and diligent worker, was bossy and 
aggressive, questioned authority and upset fellow employees. 
As a result, according to the LCBO, she was a disruptive 
influence in store No. 351 making it difficult for the manager, 
Mr. Jones to maintain staff morale and a productive operation. 



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After consulting with senior officers of the LCBO, Mr. Jones 
exercised his discretion as store manager to cease giving 
Ms. Hendry further work as a part-time employee. Second, 
the LCBO claims that because of the disturbances caused by 
Ms. Hendry and by her own appeals to higher authority the 
^ Personnel Department became aware of the unsatisfactory nature 
of her services and therefore reasonably and properly refused 
to consider her seriously for permanent employment. The LCBO 
claims that the fact of Ms. Hendry being a woman played no 
role whatsoever in their treatment of her or in their decision 
not to hire her in any capacity either full-time or part-time. 

Having heard the testimony of Ms. Hendry, of two 
fellow employees at store No. 351 and of Mr. Jones, the 
manager of that store, I would think that Ms. Hendry is very 
likely not an easy person to work with. Although she has 
limited formal education and a not very impressive work record 
before joining the LCBO in a part-time capacity, she neverthe- 
less had aspirations to become a store manager. Such aspirations 
may well be a delusion, and probably seemed unrealistic to 
fellow employees to whom she may have communicated them. Mr. 
Greenham who was a member of the permanent staff at store No. 
351 and who has known Ms. Hendry for over twenty years, seemed 
generally sympathetic toward her, but did admit that she was 
"bossy". 

Nevertheless, she was a sufficiently diligent and 
competent worker that after the busy season of December 1975, 
Mr. Jones selected her as a person to share the major load of 



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part-time work with Mr. Warner through the first six or 
seven months of 1976. If Ms. Hendry's difficult personality 
traits were as severe as claimed by the LCBO, it seems 
unlikely that Mr. Jones would have chosen to keep her on staff 
for such a lengthy period in 1976, at 18 to 19 hours per week. 
Her relations with others in the store may have worsened 
through this period, but if so we must examine the reasons 
for any deterioration. If it was due simply to growing 
conflict with some members of staff, we might conclude that 
the problem arose from causes unrelated to sexual discrimination. 
In that case I might agree that Mr. Jones exercised his normal 
managerial discretion in ceasing to assign work to Mrs. Hendry. 

Counsel for Ms. Hendry pointed out that those 
qualities attributed to Ms. Hendry by the respondent may be 
viewed in a rather different light: what may be seen as 
aggressiveness in a woman might be seen as energy and ambition 
in a man. In other words, attributes considered in a 
perjorative light in a woman may be thought of as desirable in 
a man, according to traditional male-female stereotypes. In 
this view, had Ms. Hendry been a man these attributes would 
have been looked upon with less criticism and hostility. 

There is one substantial piece of evidence to support 
this submission. Two members of the permanent staff in store 
No. 351, a Mr. Aikens and a Mr. Carr, had health problems 
which legitimately entitled them to be placed on "light duty", 
that is, they were excused from lifting and moving heavy 
cases, a rather important part of the work of a typical LCBO 



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clerk. Apparently on more than one occasion, when these two 
men were visible to the public and seen not to be doing any 
work in particular, Ms. Hendry was seen to be lifting and 
moving a heavy case of liquor. Now, we are aware that the 
traditional view in our society is for men, not women, to 
be seen doing the heavy work. Accordingly, a customer or 
customers commented on Ms. Hendry doing heavy work with the 
men standing around. Implicit in a comment of this type is 
more criticism of the men than praise of the woman. And 
the men did not like it. Their reaction was natural enough 
in our society: they were not well but did not go about 
announcing their poor health; yet they were being criticized 
by the public for apparent laziness. Of course, if it had 
merely been another man moving the cases, no comment would 
likely have been made. But here it was a woman, who was the 
cause of the comments , a part-time woman and one who was 
rather aggressive and bossy at that. Some hostility was 
understandable in these circumstances, though of course, it 
was not caused by Ms. Hendry. The LCBO can hardly be 
responsible for the comments of customers or for the upset 
caused to employees on light duty. Should the burden then 
fall on Ms. Hendry who was simply doing her job? 

In my opinion that cannot be so, for we would then 
reinforce the status quo and remove responsibility from an 
employer, in this case a public employer, for acting to avoid 
the ill effects of discrimination. In helping to change 
traditional views of roles for men and women, employers -- 
especially large institutional employers -- must bear the 



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main burden of change: the burden should not be allowed to 
fall on those who would otherwise suffer the harms of 
discrimination. Therefore, the burden of resolving the 
conflict between those workers on light duty and Ms. Hendry 
was that of the LCBO. It could not get rid of its problem 
simply by dismissing Ms. Hendry and returning to the peace and 
comfort of an all-male "happy family 11 that Mr. Jones wished 
for. As difficult as it may be for management, in my 
opinion it was the task of the LCBO, through Mr. Jones, to 
explain to the unhappy male workers that they might have to 
put up with occasional remarks by uninformed members of the 
public; perhaps they could remove themselves from public view 
at such times when Ms. Hendry happened to be engaged in heavy 
work, but in any event it was not Ms. Hendry's problem. 
Unfortunately we have no evidence from Mr. Jones of what he 
did to explain this problem to the offended workers on light 
duty if indeed he recognized it as a problem to be resolved. 
And neither of the unhappy men was available to give evidence 
before the Board. 

Ms. Hendry's own personality may well have contributed 
substantially to any growing friction and a drop in morale 
among the staff. But if the fact that she was a woman affected 
the perception of the staff and materially contributed to the 
conflict and eventually to Mr. Jone ' s decision not to offer 
her any more work, then Ms. Hendry's sex did affect her 
treatment by the LCBO. Although the time when the customers 
made remarks about Ms. Hendry doing heavy work was not firmly 



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established it seems to have occurred some time in the first 
' few months of 1976. By late spring or early summer, it was 
generally agreed by witnesses who worked in store No. 351, 
that there was some friction and drop in morale. Three and 
one half years had passed between the occurrence of these 
events and the hearing, and it is understandable that 
accurate dating of the events is rather vague. Nevertheless, 
it is my view that the deterioration did begin to take place 
by May or June 1976, from a combination of factors: 
resentment by Mr. Aikens and Mr. Carr, Ms. Hendry's diligence 
? and bossiness and her communication to other employees that 

she had ambitions to become a store manager. She must have 
been viewed as something of an upstart, a female upstart at 
that. 

We have no evidence of Mr. Jones trying to make 
peace among his staff. Rather we have one piece of evidence 
from July and August 1976 suggesting that he was anxious to 
end the problem by some other means. According to Ms. Hendry, 
she was helping unload a truck at the time, one of the 
hardest tasks physically since it may take several hours to 
transfer all the cases from the truck to the store warehouse. 
Mr. Jones expressed concern about Ms. Hendry appearing flushed 
and perspiring. He thought she should see a doctor about her 
blood pressure. Ms. Hendry replied that she had had a medical 
examination recently and there was nothing wrong with her. 
He felt she ought to have another examination to see whether 
something was wrong. Ms. Hendry did visit her doctor and he 



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provided a letter to the LCBO dated August 17, 1976, 
stating that she was "physically and mentally capable of 
employment on a regular basis with LCBO". Mr. Jones had 
no recollection of this incident and did not think it had 
occurred. However, I believe that is simply a failure of 
his memory. There would be no reason for a physician to 
provide Ms. Hendry with such a letter except at the request 
of her employer. I find that the incident did take place 
as described by Ms. Hendry. The reasonable inference from 
these facts is that Mr. Jones hoped medical evidence might 
prove Ms. Hendry incapable of continuing to work for him. 
His motives may well have been humane, but he nevertheless 
did not appear to face squarely the causes of his problems, 
or at least he appeared not to distinguish among the causes. 
When the medical basis failed, within a few daysjhe made up 
his mind to terminate Ms. Hendry's employment. In my view, one 
of the material causes was that the complainant was a woman 
in a long-time male preserve, the retail LCBO retail store. 

CONCLUSION WITH RESPECT TO PART-TIME EMPLOYMENT 

The leading case on the importance of one material 
cause among others in dismissal from employment is Regina v. 
Bushnell Communications Ltd., et al. (1974) 4 O.R. (2d) 288, 
where the accused was charged under the Canada Labour Code 
with dismissing an employee, "because the person is a member 
of a trade union" (R.S.C. 1970, c. L-l) . In that case there 
was evidence of great acrimony among a number of employees 




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and especially with the subsequently dismissed employee, 

whose dismissal led to the charge. In fact, at one point in 

a meeting there was near physical violence involving the 

employee. There seemed ample cause, apart from any membership 

in a trade union, for dismissal. However, the dismissal came 

ipss a day after the employer received advice that the employee 

* . had joined a union. It was not suggested that union membership 

was the sole or even dominant cause in dismissal and it was 

admitted by the court that had he been dismissed earlier, the 

dismissal would likely not have been wrongful. Yet the court 

found that union membership was "a proximate cause for 

dismissal .. .present with other causes", and convicted the 

accused corporation. 

As I have already found, Ms. Hendry being a woman was 

a material cause, that is, a proximate cause, one that played a 

part even if subconsciously and even if "present with other 

causes" in the decision to terminate her employment. On this 

basis I find that Ms. Hendry was dismissed contrary to section 

of the Human Rights Code 
4 , subsection 1 (b) /and that the LCBO refused to continue to 

employ her because of her sex. I shall deal with the 

appropriate remedy after I consider the complaint with respect 

to Ms. Hendry's application for permanent employment. 

THE FACTS WITH RESPECT TO THE APPLICATION FOR PERMANENT 
FULL-TIME EMPLOYMENT 

Ms. Hendry was also interested in obtaining full-time 
permanent employment with the LCBO. In April of 1976, four months 



12 

after she began part-time work and again in April of 1977 , 
just a few weeks before her termination, she filled out and 
sent to the Toronto head office applications for permanent 
employment. In each case she received acknowledgements of 
her application by form letter, but was never contacted again 
although at least two other persons were hired as regular 
staff in 1976 and 1977 in the two Brockville area stores. 
Ms. Hendry made further applications in 1978 and 1979, but 
these were after she commenced her complaint against the LCBO, 
first through the Ombudsman and subsequently through the 
Ontario Human Rights Commission. Ms. Hendry asserts that the 
bias in her treatment as a part-time employee was a significant 
factor in the decision of the LCBO not to consider seriously 
her application for permanent employment. We should note 
that counsel for the LCBO agreed that Mr. Jones's judgment 
about the suitability of Ms. Hendry for part-time employment 
was communicated to senior personnel officers of the LCBO 
and affected the way in which they handled her application. 
The application appears never tcjhave been seriously considered. 
References were never checked and no systematic written 
assessment of the applicant was ever made. 

In my view it is important to examine hiring 
practices of the LCBO generally in order to come to a conclusion 
about the treatment of Ms. Hendry's application for permanent 
employment. There is ample historical evidence for the fact 
that at one time both provincial and federal governments 
considered all positions of employment to be within the 







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discretion of the current government. Employees held office 
at the pleasure of the government in power, and many if not 
most could be expected to be dismissed and replaced by those 
favoured by another party when the government changed hands. 
This system of patronage was generally considered to be both 
.■^Ste" unwise and unfair for the vast majority of positions 

controlled by government, certainly for those at lower levels 
where employees played no role in development or implementation 
of government policy. As a result, over the years we have 
developed a system of independent bodies and commissions to 
create hiring practices free from political interference. 
The process has been slow and some areas still seem subject to 
patronage, at least to some degree and in some regions of the 
province . 

During the hearing we received uncontradicted 
testimony from two witnesses who said they were steered toward, 
and in some sense approved by a member of the local Progressive 
Conservative Party for part-time jobs at store No. 351 and the 
downtown store in Brockville. Ms . Hendry had applied for work 
directly to store No. 351 and was sent from there to Mrs. 
Rosenberg, who had no position within the LCBO hierarchy apart 
from her connection with the governing Progressive Conservative 
Party. Mr. Weidonaar was informed by Mrs. Rosenberg that the 
downtown Brockville store could use part-time help. Since 
the hiring, assignment of work and termination of part-time 
employees is wit.hin the discretion of local store managers it 
could be argued that the system of patronage was restricted to 



14 



the two Brockville stores and in any event seemed relatively 
benevolent. There is no evidence that either Ms. Hendry or 
Mr. Weidenaar supported the party in power. Indeed, Ms. 
Hendry disclosed some irritation over the process and was 
still hired. However, there was no discussion of these 
■gggg,- events by other witnesses or by counsel and no suggestion by 
the respondent that the conduct in Brockville was exceptional. 
In my opinion we could not conclude that the practice is 
merely an isolated one in Brockville. 

It may be further argued that in any event this type 
of patronage exists only with respect to part-time hiring by 
local score managers, and that applications for permanent 
positions are processed centrally at the LCBO head offices in 
Toronto through a personnel department. We have been told 
that, the LCBO is a vast organization with several thousand 
permanent employees, and that it receiver about 3600 
applications for permanent employment each year. It must 
process between 7 and 90 applications each work week. 
Accordingly there is a standard, three page application form 
for all applicants. 

Mr. E. P. Willcock, the Recruitment Supervisor for 
the LCBO for the last five years, was questioned in detail 
about processing applications. Unfortunately, his testimony 
has left us with a very unclear picture of what happens. I do 
not believe this picture is a result of any unwillingness on 
Mr. Willcock's part to be explicit. Rather it seems to be the 
result of a remarkably loose and unregularized system of 



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recruitment and hiring. The witness could not give the 
hearing a clear picture of how applications are routinely 
handled. There seemed to be no system for a more junior 
member of the recruitment staff to write to the referees 
listed by the applicant nor any system of assessing 
^s? educational qualifications or work experience. Nor could we 
discover what proportion of applicants received personal 
interviews nor by whom. Despite the senior office and great 
responsibilities of Mr. Willcock, he apparently conducted 
interviews with prospective employees at the lowest permanent 
level of Clerk II, a matter to which I will return shortly. 
In fact, he interviewed a Mr. Charles Thompson, an applicant 
for a position at approximately the same time as Ms. Hendry 
submitted her second application in the spring of 1977. 

Mr. Thompson, had been an employee of the Ontario 
Civil Service acting as chauffeur to various members of the 
Legislative Assembly and Ministers of the Crown for three 
years. He wished to leave that position and return to his 
home town of Brockville. Accordingly he applied for a position 
with the LCBO which is a Crown Agency. Civil servants and 
employees of Crown Agencies are members of separate organizations 
and there is no right of transfer or priority given to a 
person who wishes to leave one service and join the other. As 
a practical matter, it may be that an employee in one group is 
looked at favourably by recruiting officers in the other.' In 
any event, Mr. Thompson's application had been received. No 
check was made of his references but he was interviewed by Mr. 



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Wiilcock, who also spoke by telephone to the District 

Supervisor, Mr. McLelland. They agreed to hire Mr. Thompson 

to till a vacancy available in store No. 351. In order to 

understand the uncertainty of the whole process, I shall 

quote excerpts from the transcript of Mr. Wiilcock' s testimony 

Q. Now, at the time that you were considering 
Mr. Thompson's application, do you know at 
the moment how many, if any other 
applications for permanent positions were 
on file in your office from people in 
Brockville seeking employment with the 
LCBO? 

A. No, I do not. 

Q. Do you recall if you made a check at the 

time? 

A. I recall that I looked at some. How many 
there were, I don't know. 

Q. Do you think there was more than one? 

A. I would say]SO. 

l.dter in the testimony the following questions were asked: 

Q. Now do you recall, in respect of Mr. Thompson, 
. . .whether you specifically checked his 
references? 

A. No , I did not. 

Q. You did not check them? 

A. Not at that time. 

Q. 1" see. At which time? 

A. Later a credit check was done... 

Q. But did you, for example, 'phone the 
Honourable Mr. Irvine for a reference? 

A . No , I did not .... 



17 



Q. Did you have any outside knowledge 
as to whether he, for example 
could get along with people other 
than your own observations? 

A. I would say he had been doing so for 
three years. That's all I could 
base my knowledge on, and what I felt 
about the man when I interviewed him. 

Thus, Mr. Thompson was hired on the basis of his application , 

form, an interview with Mr. Willcock and a telephone 

conversation between Mr. Willcock and Mr. McLelland. There 

was no evidence of a comparison of the merits of other 

candidates, and Mr. Willcock agreed that Ms. Hendry was 

eliminated because of unfavourable reports about her. 

With respect to Mr. Willcock' s role in interviewing, 

he was asked whether he interviewed every applicant. He 

replied that he did not and could not say what proportion he 

did interview. He could not recall specifically what women 

applicants he had interviewed. Again, it is useful to examine 

the transcript: 

Q. ...[Do] you interview everybody who is 
hired as a store clerk at the LCBO? 

A. No. 

0. How many of the people who are hired as 
store clerks would you interview? 

A. Hmm, it's hard to say. 

Q. ...looking at the statistics where 

there were eighteen women employed in 
the stores in 1975 and the next year, 
that number appeared to have risen by 
about thirty-two. . . Would you have any 
idea or estimate of how many of those 
women you personally would have 
interviewed? 

A. No. 



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Q. Well, do you recall if you interviewed 
any of them? 

A. What was the year? 

Q. It was '75-76. 

A. No, not that year. I don't remember. 
There followed some discussion about interviewing women 
applicants from time to time. Mr. Willcock stated that there 
are other people in the office who interview applicants , but 
he could provide no specific information about the allocation 
of duties and responsibilities for interviewing. Interviews 
for applicants distant from Toronto seem to be carried out by 
District Supervisors. In response to a series of questions 
from the chairman about the division of duties in Mr. 
Willcock' s office, he stated that interviewing depended "a lot 
on the workload at any specific time... you play it by ear... 
who's going to do the interview..." 

Based on the evidence of Mr. Willcock and other 
senior officers of the LCBO who gave evidence, I believe that 
the recruiting practices, although nominally centralized, are 
largely passive. That is, the recruitment system responds to 
local needs; when a store is shorthanded either because of loss 
of staff or increase in business, the manager requests one or 
more additional permanent staff. It would be a fairly simple 
calculation, based on the size of a store and its volume of 
business, to decide on the number of permanent staff according 
to established norms. At that point, the recruitment office 
in Toronto rather cursorily examines applications on hand and 



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then seems to rely largely on recommendations from District 
Supervisors who in turn are in touch with local store managers. 
In the Brockville area at least, several recent full-time 
employees started out as part-time help. The views of store 
managers on such applicants are sought by senior officers. 
r Hcnce, whether intentionally or not, at least in the Brockville 
area, patronage plays a role in who becomes part-time help and 
consequently in who eventually becomes a permanent employee. 

In summary, so far as can be discerned from the 
evidence before the hearing, the procedures for recruitment 
and hiring of permanent employees lacks systematic and careful 
examination of applicants on a comparative basis. For this 
reason I do not believe that the handling of the application of 
Mr. Charles Thompson was unusual in its laxness, nor did it 
demonstrate any political interference. There is no practical 
way of deciding, if Mr. Thompson's application had been carefully 
considered along with that of Ms. Hendry and any others on file, 
whether he or some one else would or should have been selected. 
In my opinion, however, Ms. Hendry would not have been selected 
because of the adverse reports already received by Mr. Willcock. 

An important question argued by counsel for the 
Human Rights Commission concerned the LCBO ' s overall record as 
an employer. Counsel contended that the LCBO has a very poor 
record in hiring women who form a minute part of the LCBO store 
work force when compared with the ratio of women employed 
generally in our society. The figures placed in evidence before 
the hearing, as provided by the LCBO, were as follows: 



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YEARS TOTAL PERMANENT 

EMPLOYEES 

Men Women (% Women ) 

1974- 75 — 3344 — (total) 

1975- 76 3203 230 6.7% 

1976- 77 3311 196 5.6% 

1977- 73 3355 214 6.05 
1973-79 3388 205 5.7% 



PERMANENT STORE 
EMPLOYEES 

Men Women (% Women) 



2748 
2791 
2737 
2830 
2837 



18 

50 
60 
75 
84 



0.65% 
1.76% 
2.14% 
2.58% 
2.87% 



Mr. d'Oliveira, on behalf of the Commission argued 
very ably that these figures, while disclosing some minimal 
change and improvement in the performance of the LCBO 
established a prima facie case of systematic discrimination 
against women by that Crown Agency. He relied on recent 
developments in United States jurisprudence which has been the 
main source for our legislation in this area. A number of U.S. 
cases from the mid 1970' s were cited, discussing the recognition 
by American courts of the weight to be given to statistical 
evidence of discrimination in employment. The courts there 
seem ultimately to have concluded that statistics are often 
better evidence of discrimination than single instances of 
alleged discrimination and its denial. 

In my view, there are major differences in the 
evolution of the law in the United States and Canada on this 
subject. First, the right to equal treatment in the United 
States is derived from basic protections found in the American 
Constitution. The acts of various legislatures and of the 
courts themselves are seen as a furtherance, a more efficient 



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mode , of implementing those rights guaranteed by the 
Constitution at least since the post-Civil-War period in the 
last century. In Canada, human rights legislation is seen as 
creating new legal rights for individuals as a result of recent 
enlightenment and new sensitivity in our society. It is not 
"that these protections should not have been legally recognized 
earlier, but simply the fact that they were not until our 
legislatures and courts acted. In this environment the history 
of our institutions and their practices before current 
legislation came into effect must not be held against them. An 
employer cannot be found a wrong-doer retrospectively, even if 
he may be under a present duty to remedy an existing situation. 

Traditionally in our society, especially since the days of 
temperance and prohibition, the production, sale and consumption 
of alcoholic beverages was looked upon as an evil, a special 
range of activities from which women were expected to absent 
themselves. "Respectable" women would not be seen in a liquor 
store at all. Whether before the present Code came into force 
the LCBO would have hired women store clerks is not relevant. 
So far as we know it did not do so. Other aspects of the 
liquor business, such as exlusive men's areas in licensed 
premises, were legislated out of existence only in the mid 
1970' s. Accordingly, it is easy to understand that at the 
beginning of the 197 0* s there would have been a very small 
proportion of women working for the TXBO . And no doubt it has 
Laker, time for women' themselves to think of work with the LCBO 



22 

as appropriate for them, much as it has taken time in such 
other occupations as police work and engineering. 

The question is whether the LCBO has moved 
reasonably with the times in comparison with other sectors 
of the employment market, not for the purpose of condemning 
^sthe LCEO for past practices but of encouraging it to comply 
with currently acceptable standards. The LCBO statistical 
data is incomplete : it does not disclose the proportion of 
male applicants to female applicants nor their respective 
success rates in obtaining employment; it does not disclose 
the annual rate of staff turnover and therefore the opportunities 
to correct historical imbalances (if the turnover rate is very 
low, it will take a much longer time to make corrections) . Nor 
did we receive any information on LCBO practices in advertising 
and recruiting, if any. The minimal statistical information we 
do have suggests a very large imbalance as between men and 
women and very little progress in changing that balance. In 
the absence of any other evidence on the subject, I have 
concluded that the recruiting practices of the LCBO are largely 
passive. With little if any active recruitment, it has had 
little opportunity to affect existing discriminatory patterns. 
The system of patronage at the local level would also seem to 
reinforce existing stereotypes of the typical LCBO male clerk 
Thus the status quo remains, not through any institutional 
opposition by the LCBO nor by any conscious desire to 
discriminate, but merely by perpetuating the existing system. 
I believe the Ontario Human Rights Code expresses in its 
preamble a will and a duty to change existing practices. -It 



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is the responsibility of the LCBO to make such changes as 
are necessary to ensure compliance with the spirit and the 
letter of the Code. I find that it has not done so, either 
in the particular treatment of Ms. Hendry's application for 
permanent employment or in its handling of recruitment 
generally . 

REMEDY WITH RESPECT TO PART-TIME EMPLOYMENT 

Ms. Hendry was hired as a temporary, part-time 
employee . As such she had no right to expect continued 
employment indefinitely into the future. She did have a right 
not to be terminated through a breach of the Human Rights Code. 
Accordingly, she is entitled to compensation for the loss 
caused by that breach. Since the employment was temporary 
but. indeterminate, it ought not to be considered open-ended, 
continuing indefinitely, or even for the lengthy time that 
elapsed between termination in May 1977 and the hearing in 
December 197 9. No evidence was adduced by either party of the 
average length of service of temporary employees. Indeed, it 
may be very difficult to arrive at such an average. First, 
some part-time employees are clearly short term: students 
during holiday periods; temporarily unemployed persons between 
full-time jobs; retired persons who wish to work for a short 
time. Second, there may be regional differences: there may 
be much higher turnover in some areas such as larger cities 
than in small communities. As a result, my estimate of 
the loss suffered is a sum less than an amount that could 



24 

have been earned had Ms. Hendry worked up to the date of hearing 
but it is not an insubstantial sum. 

First, I believe Ms. Hendry is entitled to a sum 
e yial to half the total earned by Mr. Warner and the person 
who worked the next largest number of hours between September 
7, 1976 and November 2 7 , 1976 f the period before she was 
rehired. In that period Mr. Warner and Mr. Robertson together 
worked a total of 513 hours. Half would be 256.5 hours at 
$4.08 per hour, or $1,046.52. 

Second, Ms. Hendry is entitled to a sum, on the same 
basis, between December 28, 1976 and her final termination May 
14, 1977, less any sum actually earned by her. During that 
period Mr. Warner and Mr. Went (who replaced Mr. Robertson as 
the part-time employee working the next largest number of hours) 
worked a total of 798 hours. Half would be 399 hours, less 100 
hours worked by Ms. Hendry leaving a net difference of 299 hours 
at $4.08 per hour, or $1,219.92. 

Finally, we may note that during the 32 week period 
covered by the above calculations, the average number of hours 
worked per week by Mr. Warner and the employees working the 
next largest number of hours is 20.5 [256.5 + 399 = 655.5; 
655.5 * 32 = 20.5]. I believe Ms. Hendry should be entitled 
to receive compensation for that number of hours per week at 
the increased LCBO rate of $4.49 per hour for a period of a 
further six months, less any earnings actually received from 
other sources during the same period. For that 26 week period 
the sum would be $2,393.17. However, during that same period Ms 
Hendry earned $3,4 53.4 6 while employed at St. Lawrence Lodge, 



23 



so that she suffered no net loss in earnings and no award need 
be made for that period. (The same result would have followed 
even if the period had been extended to a year; Ms. Hendry 
earned more elsewhere) . 

In sum then, the compensation awarded to Ms. Hendry 
against the LCBO with respect to her dismissal as a part-time 
employee is $2,266.44. The LCBO is responsible for deducting 
from this sum and returning to the Unemployment Insurance 
Commission any sums received by Ms. Hendry that are liable by 
statute to be returned to the Commission for the periods, 
September 7, 1976 to November 27, 1976, and December 28, 1976 
to May 14 , 1977. 

R EMEDY WITH RESPECT TO APPLICATION FOR FULL-TIME EMPLOYMENT 

The matter of an appropriate remedy for the failure 
to consider seriously Ms. Hendry's application for permanent 
employment raises several questions. First, we have the 
uncertainty whether Ms. Hendry would have been offered a 
position had her application been seriously considered. I 
have examined her application and two other applications put 
in evidence, that of Mr. Warner and of Mr. Thompson. No 
assessment of these applications accompanies them, nor are letters 
of reference attached. Despite the slim nature of the evidence, 
I do not find Ms. Hendry's application a strong one. However, 
I could not rule it out, especially considering the lack of 
articulated LCBO criteria for hiring. Thus, while Ms. Hendry 
was denied the chance for serious consideration, it is by no 



2 6 

means clear that she was likely to be offered a position had she 
received such consideration. Even so, it could be argued that 
an aggrieved party should receive a meaningful remedy. To 
require simply that the LCBO reconsider her application in the 
light of this decision might well lead to no useful remedy to 
Ms. Hendry: the LCBO might find that no position is now available, 
or that on careful consideration there are one or more better 
applicants available for any vacancies - or it might simply 
decide after checking references that Ms. Hendry is unsuitable. 

A stricter remedy against the LCBO would be to require 
it to offer Ms. Hendry a position as a permanent employee in 
Store No. 351, or perhaps in the downtown store in Brockville. 
Such a remedy would appear to satisfy the complainant's wishes. 
However, an order to offer a position would be analogous to an 
order for reinstatement to a position from which a person has 
been wrongfully removed, since Ms. Hendry has worked as a part- 
time employee in the same environment. Courts, as should 
tribunals such as this Board, exercise great care in ordering 
reinstatement, that is, forcing a person into a workplace 
against the wishes of the employer and possibly fellow employees. 
There are several reasons for this care, even reluctance, to make 
such an order. First, it may be economically unsound there 
may be no vacancy, the complainant being inserted as a super - 
nuraery , thus aggravating existing conflict. Second, in this case 
there is no certainty, or recossarily even any likelihood , that 
the complainant would on her merits have obtained the position 
had she been properly evaluated at the time of her application. 




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27 

For example, there is no evidence that in 1977 Mr. Thompson 
was not a more meritorious applicant. Therefore, it is difficult 
to assert that Ms. Hendry has been wrongfully denied an offer 
of a job rather than to assert the lesser right that she was 
denied serious consideration for it. Third, and very important, 
the workplace is small: one manager, an assistant and a half dozen 
or so other full-time employees, who must work closely together 
in freely interchangeable tasks. Personal relations are an 
especially important aspect of this type of workplace. In these 
circumstances, to order the LCBO to provide a store position 
for Ms. Hendry in Brockville in very likely to create more 
friction and bitterness. In my opinion, it would not further 
the goals of the Human Rights Code. Accordingly, I decline to 
make such an order. 

The result is that Ms. Hendry cannot expect to work 
for the LCBO. Her career expectations, perhaps unrealistic, have 
nevertheless been thwarted without having the chance that would 
have been provided by proper consideration of her application. 
She has suffered emotionally as a result of the failure of LCBO 
to abide by the Code, and has been insulted as a woman. As the 
solace available in these circumstances, both to make it clear 
to Ms. Hendry that her unfair treatment is recognized by this 
Board and to the LCBO that it must take very seriously the harm 
done by failure to abide by the Code, I would award Ms. Hendry 
the additional sjhi of $8,000 as general compensation. Ms. Hendry 
should also receive a letter of apology from the LCBO. 

The Human Rights Commission has requested the- opportunity 



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to assist the LCBO in improving its employment practices so that 
they comply with the Code. It wishes to help develop a program 
to rectify the imbalance between men and women employed by the 
LCBO, and it wishes to monitor the LCBO employment practices 
for a period of twelve months from the date of this decision. 
It also requests that the LCBO post Ontario Human Rights 
Commission declarations of equal employment opportunities, 
brochures or code cards in prominent places on the premises of 
the LCBO facilities throughout the Province. These requests 
are reasonable in the circumstances and should be granted. 



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IN THE MATTER OF THE ONTARIO HUMAN RIGHTS 
CODE R.S.O. 1970, CHAPTER 138, AS AMENDED 



AND IN THE MATTER OF the complaint made by 
Ms. Betty J. Hendry of Brockville, Ontario, 
alleging discrimination in employment by 
the Liquor Control Board of Ontario, 
Brockville Shopping Centre, Brockville, 
Ontario . 

ORDER 

This matter coming on for hearing on the 10th day 
of December, 1979, before this Board of Inquiry, pursuant to 
the Appointment of Robert Elgie, Minister of Labour, dated 
the 5th day of September, 1979, in the presence of Counsel 
for the Human Rights Commission and Ms. Betty J. Hendry, the 
Complainant, and Counsel for the Liquor Control Board of 
Ontario, the Respondent, upon hearing evidence adduced by 
the parties and what was alleged by the parties, and upon 
finding that the complaint was substantiated. 

1. It is ordered that the Respondent post standard 
Human Rights cards or brochures in prominent 
places in all their business premises throughout 
the Province. 

2. And it is ordered that the Respondent co-operate 
with the Human Rights Commission and the Women's 
Bureau of the Ministry of Labour in designing a 
progra- to take such steps as are appropriate to 
reduce the imbalance between men and women employed 
by the Respondent. 

3. And it is further ordered that Respondent provide 
the Human Rights Commission with sufficient informa- 
tion on employment practices and statistics to 



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permit the Human Rights Commission to monitor 
the employment practices of the Respondent 
insofar aj they relate to the Human Rights 
Code, for a period of twelve months from the 
date of this order. 

4. And it is further ordered that the Respondent 
send a letter of apology to the Complainant for 
the failure to abide by the Human Rights Code 
in its treatment of the Complainant. 

5. And it is further ordered that the Respondent 
pay the sum of $2,266.44, as compensation with 
respect to part-time employment, and the further 
sum of $8,000, as general compensation for the 
loss of opportunity to be seriously considered 
for permanent full-time employment and the 
resulting emotional suffering, making a total of 
$10,266.44, by way of compensation to the 
Complainant . 



DATi:D at Kingston the 5th day of August, 1980 




D. A. SOBERMAN 
Chairman, Board of Inquiry